The American Civil Liberties Union of South Dakota has written an open letter to South Dakota Attorney General Marty Jackley in response his comments about the issuing of same sex marriage licenses.

Concerning the possibility of a county employee refusing to issue a marriage license to same-sex couples, the Argus Leader reported that Jackley stated that if an employee has an objection they may have someone else in the office do it. If there are no other qualified people in that location qualified to do it, the couple would have to go to another county. Jackley called it a "commonsense solution."

In its letter to Jackley the ACLU of South Dakota disagrees, saying that “County officials who have a duty to uphold the law are not able to discriminate against individuals based upon their own religious beliefs. They have a duty to impartially administer the law to all citizens.”

The recent Supreme Court decision in Obergefell v. Hodges declared that bans on same-sex marriages are unconstitutional. “The Court held that the Equal Protection and Due Process Clauses of the Fourteenth Amendment require marriage for same sex couples to be afforded "on the same terms as accorded to couples of the opposite sex."…Thus, same-sex couples are entitled to the same right to marry as opposite-sex couples, and South Dakota and those acting on its behalf must honor that right.”

In other words, if an opposite-sex couple can be issued a marriage license in a county, same-sex couples must be afforded the same treatment. This is because when acting as officials of the government, county employees, the job has to be performed in accordance with the law. It doesn’t mean that a person has to agree with it, be cool with it or have any opinion on it at all. The duties of the position are separate from the individual. They can’t refuse to issue license to interracial couples, to an older man and a younger woman, to someone that don’t personally like, to someone that has been married several times before or someone with tattoos.

“…[F]orcing same-sex couples to drive to a separate county to obtain services that heterosexual couples can access in their home county is not equal treatment. All county officials and public employees must abide by the U.S. Constitution. County clerks, like all public officers in South Dakota, take an oath swearing to "support the Constitution of the United States and of this state and" to "faithfully and impartially discharge the duties of his office". S.D.C.L. 3-1-5. As dictated by Obergefell, the Constitution requires equal treatment of same-sex couples. Obergefell, slip op. at 22. All county officials and employees are subject to this oath and must accord equal treatment to same-sex couples, regardless of their personal beliefs.”

 

The ACLU of SD’s letter goes on to make a good point on an aspect of this discussion that has gotten lost. This is, and never was, about the religious marriage, it only about the constitutionality of denying a government service to one group. It’s about legal marriage. Nobody is required to think or believe anything different.

“We recognize that religious liberty is a fundamental American value protected by the First Amendment, but that liberty has never meant that government officials can rely on their personal religious beliefs to discriminate against citizens seeking vital government services. Although county clerks have every right to advocate their personal views when acting as private citizens, public officials acting in their official capacity do not have unfettered First Amendment rights….”

The letter goes on to remind people that the Obergefell decision does not affect churches.

“Our First Amendment guarantees that no religious cleric or house of worship can ever be compelled to participate in the solemnization of a marriage that is contrary to the dictates of that faith, nor can opponents of same-sex marriage be prevented from advocating their views zealously in the marketplace of ideas. However, a public official's personally held religious beliefs are not superior to the right of all citizens to be treated equally under the law.”

Read the entire letter here.

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